VA Form 21 Podcast

VA Form 21 Podcast

Caring. Effective. Efficient.

Episodes

  1. 07/12/2018

    Episode 010: “No, I won’t give you my Debit Card PIN Number” (FCOA Precedent: Acree, #17-1749, Legal standard to withdraw an appeal orally at BVA)

    What is the Deep Issue in the Case? VA regulations provide that a veteran’s “appeal may be withdrawn as to any or all issues involved in the appeal.” 38 C.F.R. § 20.204(a). a statement made by a veteran at a board hearing qualifies as an effective claim withdrawal in accordance with the regulation only where it is: (1) “explicit”; (2) “unambiguous”; and (3) “done with a full understanding of the consequences of such action on the part of the [veteran].” DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011) The BVA Hearing Officer asked the veteran if he was withdrawing seven of his eleven claims from the appeal. This is the extent of the conversation: [BOARD MEMBER]: The issues certified for appellate consideration today, well there’s more issues certified than what we’re going to be discussing because some of the issues have been withdrawn. So let me address the issues that have been withdrawn first. The issue of an increased rating for degenerative arthritis of the  tendonitis of the left shoulder. An earlier effective date for service connection for degenerative arthritis with tendonitis of the left shoulder, lumbar strain, [PTSD] and sinusitis. Entitlement to service connection for exposure to Gulf War hazards and entitlement to a total disability rating based on individual unemployability. You’re withdrawing your appeal with respect to all of those issues, is that correct, Mr. Acree? [ACREE]: Yes. Can a single word answer at a BVA hearing cannot demonstrate a “full understanding of the consequences for withdrawal of a claim under 38 C.F.R. §20.204 What did the FCOA Decide? The Federal Circuit found that “[b]ecause there has been no finding regarding whether Acree understood the consequences of withdrawing his claims, we remand his case for further development.Although the court correctly articulated the three-part DeLisio standard [internal citation omitted] it improperly absolved the board of any obligation to apply the third prong of that standard. See Allentown, 522 U.S. at 375 (explaining that “a decision that applies a standard other than the one it enunciates” impedes the “consistent application of the law”). The VA had asserted, in oral argument that the Veterans Court properly applied that standard in a “flexible” manner. The Secretary also believed that an authorized representative could withdraw an appeal consistent with 38 C.F.R. § 20.204(a), which allows a veteran or a veteran’s “authorized representative[] may withdraw an appeal.” The Federal Circuit was not persuaded. They wrote: “No amount of ‘flexibility’ can salvage a decision which apparently gave no consideration to whether this requirement was satisfied. See Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985) (“[I]f the agency has not considered all relevant factors, or if the reviewing court simply cannot evaluate the challenged agency action on the basis of the record before it, the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation.”). As to the argument that a veteran’s representative can withdraw an appeal, the Court called on the Secretary’s words in the notice and comment portion of 38 C.F.R. §20.204 which it found inconsistent with the Secretary’s position on appeal. In doing so, it found that in the “unusual instances in which a representative appears alone before the board and seeks to withdraw one or more claims, it is unlikely to be unduly burdensome for the hearing officer to determine— either by questioning the representative or by contacting the veteran directly—that the veteran firmly intends to withdraw a claim and understands the consequences of claim withdrawal. See Board of Veterans’ Appeals: Rules of Practice–Appeal Withdrawal, 68 Fed. Reg. 13,235 (Mar. 19, 2003) (explaining that although section 20.204(b) now permits “a representative to execute [a veteran’s] desire to withdraw an appeal,” the veteran “is the veteran “is the one making the decisions” regarding claim withdrawal) Takeaway Points for VSOs and Veterans Disability Lawyers: 1) It is common for BVA to convince veteran to withdraw an appeal. It is very common for a BVA hearing officer to encourage a veteran to withdraw an appeal orally, in off-the-record discussions before the  BVA hearing.  The BVA hearing officers frequently do this to reduce the number of issues they have to address, and although the veteran in this case was represented by a DAV veterans service representative at the BVA, they frequently do so when a veteran is pro-se. VA Regional Offices often talk a veteran into withdrawing an appeal or claim as part of a horse-trade: we’ll grant you Claim X, if you withdraw an appeal for Claim Y.  Because the veteran doesn’t know that Claim Y has the potential to provide much more in past-due and future benefits, he or she often agrees to withdraw an appeal. Most times, the VARO double-crosses the veteran, and declines the benefit under the non-withdrawn claim or appeal, leaving the veteran with nothing.  It is my position that you should never withdraw an appeal or claim, unless it is wholly frivolous and without legal merit. If you don’t know that to be the case, don’t withdraw. Make the VA and BVA do the work they are required to do. It is also my position that these pre-hearing withdrawals actually constitute a pre-hearing conference, which I believe the BVA should record as part of its hearing. However, they do not, so there is often no record of why the appeal was withdrawn, or what the BVA hearing officer said to convince the veteran to withdraw an appeal. We recommend that veterans make their own recording of the BVA pre-hearing conference, and have it transcribed and certified by a local court reporter. Such a transcription should be provided as part of the Record Before the Agency (RBA) at the Court of Appeals for Veterans Claims. Attig | Steel has a current CAVC appeal considering this very question: when a pro-se veteran records the pre-hearing conference, and the BVA Hearing Officer persuades him to withdraw an issue on appeal, the recording and its transcription should be a part of the RBA. Ziminsky v. O’Rourke, CAVC #17-3807. Link to the CAVC Docket Sheet It is worth noting that the CAVC currently has an appeal set for oral arguments addressing the Delisio standard relied upon by the Federal Circuit. Graham v. O’Rourke, CAVC #17-1519. I’m not sure what will become of this appeal in light of the Federal circuit’s decision in Acree, but I will certainly keep you posted.  In the meantime, don’t withdraw anything at the BVA – most practitioners with less than 5 years experience have little idea of the consequences of their withdrawal – it takes at least that long to gain an understanding of the full scope of relief that may be available at the BVA, or legal issues that are changing in the landscape of veterans law.  If you find that the BVA withdrew your appeal based on some standard less than the 3 noted in the Delisio case, please contact Attig | Steel to inquire about possible representation at the Court of Appeals for Veterans Claims.  2) Informality of Proceedings at the BVA. The Court’s adoption of the  Delisio standard for verbal claim withdrawal drew heavily on the idea that the Veteran’s benefits system is  “uniquely pro-claimant”. It looked to the Comer case for finding that the VA system is “not meant to be a trap for the unwary, or a strategem to deny compnsation to a veteran who has a valid claim.” Comer v. Peake, 552 F.3d 1362, 1369 (Fed. Cir. 2009) It found that adopting the Delisio standard served as a bulwark against the inadvertent or uninformed forfeiture of a veteran’s rights. See Henderson v. Shinseki, 562 U.S. 428, 431 (2011) (“The VA’s adjudicatory process is designed to function throughout with a high degree of informality and solicitude for the claimant.” (citation and internal quotation marks omitted)); Jaquay v. Principi, 304 F.3d 1276, 1280 (Fed. Cir. 2002) (en banc) (“Congress has created a paternalistic veterans’ benefits system to care for those who served their country in uniform.”). These citations are significant: Comer, Henderson and Jaquay are key cases that underpin the pro-veteran canon: the idea that veterans benefits statutes are to be construed to inure to the veterans benefit.  To be clear, the Federal Circuit did not mention or cite to the pro-veteran canon. What it did, though, by citing these cases and reviewing the error of the CAVC was to reinforce the foundation that this system should be informal and simultaneously benefit the veteran.  The VA Secretary often believes that informality means something different than it does: that somehow, being informal means being flexible and not fully applying the law. Instead, what it means is that the veteran should not have to navigate a labyrinth, even while the VA is required to fully comply  with the law.  More on this later, but I want you to think about the applicability of the pro-veteran canon as something more than a statutory construction tool. In your cases, how could the VA’s strict application of a law, rule or regulation benefit your client, without requiring a high degree of formality from the veteran in the invoking of the law, or its application. I’m being intentionally subtle here. What I want you to think about – and reach out to me to discuss – are cases where a VA statute or regulation has a strict rule, but that strictness is being used to harm the veterans interest in prosecuting a claim or appeal. It is these cases which, I believe, can be used to help bolster the pro-veteran canon as a tool that goes far beyond a tool for statutory or regulatory interpretation.   Look to the language in this case, and think of scenarios where “it is unlikely to be unduly burden

    52 min

  2. 04/27/2018

    Episode 006: CAVC Oral Argument: Atencio v. Wilkie, 16-1561 (April 26, 2018)(Gulf War Syndrome presumptions and GERD)

    What the ‘MUCMI’ is going on with GERD? PREVIEW OF THE CASE: General Overview of the Medicine Some terms you will hear in this argument: GERD is Gastro Esophageal Reflux Disorder. GERD can often – but not always -result from a dysfunctional valve at the top of the stomach and bottom of the esophagus. Stomach acid that washes up into the esophagus can cause dangerous tissue damage. A Functional Gastro-intestinal disorder is one that affects how the gastrointestinal functions, as opposed to one that affects how the gastrointestinal system is  structured, or one that affects the biochemistry of the gastrointestinal system. Counsel for the veteran tried to create an acronym for this: FIGD (or fidget). The Court, thankfully, put the kibosh on that.   General Overview of the Law 38 C.F.R. §3.317 might be one of the VA’s most significant “nods” to complexity ever written. I strongly encourage you to read it, and, if you have a client affected by this regulation, take the time to map out the sequence of this regulation.  The regulation purports to derive from 38 USC §§ 1117 and 1118, which are much more direct and simple in their instruction. Congress passed these statutes to give Gulf War Veterans an easy path to prove service connection when they exhibited the symptoms of a condition known as Gulf War Syndrome.  That easy path has turned into a labyrinth of red-tape, and if there was ever a regulation that is Exhibit A in the arguments against Auer deference to Agency interpretations of their own regulations, this is it. The argument in this case is, at its core, a statutory interpretation case. However, neither party briefed this issue, and so the Court is finding it difficult to navigate how to interpret the regulation when, in my opinion, the real issue is whether the regulation lawfully follows from the statute. That said, here is the crux of the issue: under 38 C.F.R. 3.317(a)(2)(i), the VA specifically excludes structural gastrointestinal diseases from the definition of a qualifying disability, because GERD is largely though to be a structural gastrointestinal disease, it is disqualified. However, 38 C.F.R. §3.317(a)(2)(ii) specifically includes in the definition of “MUCMI” (click here to download the VA’s M21-1MR guidance on MUCMIs) a diagnosed illness without conclusive pathophysiology or etiology. Thus, the question becomes: notwithstanding the Secretary’s exclusion of GERD as a disability that qualifies for the Gulf War Syndrome presumption, is it still able to afford the presumption for a Veteran with GERD if there is no conclusive pathophysiology or etiology? My personal take is that the whole question is a red herring: the Secretary may only regulate that which Congress specifically allows, and because Congress did not exclude GERD from consideration for the Gulf War Syndrome presumption, neither can the VA.  However, assuming for the sake of argument that the regulation is lawful, then Appellant’s arguments make a lot of sense.  If GERD is caused by a failure of the valve between the esophagus and the stomach, as it often is, then it is indeed structural and likely not the manifestation of symptoms of  GWS. If, however, the veteran’s GERD has no known etiology (cause) or pathophysiology (disease mechanism), then there is a really good possibility that, diagnosed or not, it is not a structural GI disease and is in fact functional.   Again, this is MY opinion, the parties don’t necessarily argue this, which is fine. As I “Monday morning quarterback” this argument and case, I have the luxury of thought and time that judges and advocates don’t necessarily have while in the heat of oral arguments.  HOWEVER, if you have a BVA decision in which the VA denies you presumptive service connection for GERD as a symptom of Gulf War Syndrome, stating that it is denying it because GERD is a structural GI disease excluded from the presumption, click here to upload the BVA decision so I can take a look to see if the BVA decision can be appealed and the exclusion of GERD from presumptive GWS service connection challenged.   That said, I don’t want MY opinion to taint your perspective of this case.  I only add it to give texture to what follows, which is an expose of the law surrounding the Gulf War Syndrome presumption and GERD. 38 C.F.R. 3.317 entitles a qualifying veteran with a qualifying condition to a presumption of service connection with a qualifying condition. Now, let’s turn to definitions. A Persian Gulf veteran is one who served on active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War. The  Southwest Asia theater of operations refers to Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations. To be entitled to this presumption, your qualifying condition must have first manifest itself during service in the Southwest Asia theater of operations, or manifest to a  degree of 10 percent or more not later than December 31, 2021. To have a qualifying condition,  you must first have a chronic disability that results from one of the following: undiagnosed illness, or a MUCMI (“medically unexplained chronic multisymptom illness”) that is defined by a cluster of signs or symptoms, such as chronic fatigue syndrome, fibromyalgia, o ra functional gastrointestinal disorders (but excluding structural gastrointestinal diseases). A MUCMI is a “medically unexplained chronic multisymptom illness”, and according to 38 C.F.R. §3.317, it is a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities.”  As noted above, §3.317 expressly excludes GERD (if it is a structural GI disorder) from consideration as a qualifying disability. However, §3.317 also allows veterans to prove that a diagnosed condition is still a MUCMI, entitled to the presumption, if it lacks conclusive pathophysiology or etiology.   Facts & BVA Decision. This case has been going on for some time.  The veteran first sought service connection for GERD in 2006.  The case has been to the BVA at least 3 times, from what I can discern in the parties arguments.  It has been remanded by the BVA twice, and remanded by the CAVC once. The BVA found the veteran was diagnosed with GERD in 1998. The Board denied Ms. Atencio’s claim, finding GERD was not a functional gastrointestinal disease and that as such, service connection under 38 C.F.R. § 3.317 could not be established. Basically, the BVA found that while regardless of whether GERD is a “medically unexplained chronic multisymptom illness” which is diagnosed, and regardless of whether it does not have “conclusive pathophysiology or etiology,” 38 C.F.R. 3.317 specifically excludes “structural gastrointestinal diseases” from the presumption of service connection due to Gulf War Syndrome.  Because Ms. Atencio’s GERD is, according to the BVA, an excluded structural gastrointestinal diseases and is not a functional gastrointestinal disorder as the symptoms are explained by the diagnostic test results, it cannot be considered for presumption service connection under 38 C.F.R. §3.317. The BVA also found that the probative evidence of record weighed against a finding of either direct or secondary service connection. Veteran’s Argument. The first presents an issue of first impression, whether GERD is categorically excluded by 38 C.F.R. § 3.317 (2017) from ever being considered a medically unexplained chronic multisymptom illness (“MUCMI”).  The veteran argues that under 38 C.F.R. 3.317(a)(2)(i), the VA specifically excludes structural gastrointestinal diseases from the definition of a qualifying disability, because GERD is largely though to be a structural gastrointestinal disease, it is disqualified. However, he points out that under 38 C.F.R. §3.317(a)(2)(ii), the Secretary specifically includes in the definition of “MUCMI” a diagnosed illness without conclusive pathophysiology or etiology. The question that the Veteran asks the Court to address is this: notwithstanding the Secretary’s exclusion of GERD as a disability that qualifies for the Gulf War Syndrome presumption, is it still able to afford the presumption to a veteran with GERD if there is no conclusive pathophysiology or etiology? Secretary’s Argument. The Secretary’s argument is basic, but (with respect) lacks detail. He argues the veteran is misreading the regulation, and the veteran provides no legal support for the  distinction. The Secretary does not, in my read, appear to engage the Appellant’s legal theory, which makes it hard to explain their position beyond stating it. The Secretary notes that he believes that the regulation is NOT ambiguous, but goes on to cite to the regulatory notice and comment as support for the Secretary’s intent for excluding GERD as a structural GI disease.  As a general rule, if I mis-state a parties position in one of these posts, PLEASE reach out to me at vetlaw@attigsteel.com so that we can get it fixed.  I work diligently to state the argument as clearly as I can, while at the same time objectively explaining each parties arguments. Obviously, I’m human, so I am going to fail in this endeavor from time to time. Please free to reach out to me if I fail to accurately state your parties position in a case summary or oral argument preview. Court’s Framing of the Issue: There is no supplemental briefing order relevant to the issue argued in oral arguments, so I will borrow the Appellant’s framing of t

    1h 23m

  3. 04/25/2018

    Episode 005: CAVC Oral Argument: Simmons v. Wilkie (16-3039)(CAVC Application of Harmless Error Rule)

    General Overview of Harmless Error law. The major question in this case is how the CAVC should apply the harmless error rule when it might involve making findings of fact. The Court stated in its supplemental briefing order that it “…has a statutory duty to consider whether any Board error was prejudicial. 38 U.S.C. § 7261(b)(2).” (emphasis added) From the outset, I need to point out this is not entirely accurate. 38 U.S.C. §7261(b)(2) is much narrower: “In making the determinations under [its jurisdiction] the Court shall review the record of proceedings [before the BVA] and shall take due account of the rule of prejudicial error.” 38 U.S.C. 7261(b)(2). (emphasis added) The Supreme Court has explained precisely what this meant:  “We believe that the statute, in stating that the Veterans Court must ‘take due account of the rule of prejudicial error,’ requires the Veterans Court to apply the same kind of ‘harmless-error’ rule that courts ordinarily apply in civil cases.” Shinseki v. Sanders, 556 U.S. 396, 406 (2009).   The federal “harmless-error” statute is what is ordinarily applied in civil cases and is codified at 28 U.S.C. §2111.   The harmless error statute directs courts to review cases for errors of law “without regard to errors” that do not affect the parties’ “substantial rights.”   That language seeks to prevent appellate courts from becoming “impregnable citadels of technicality”. Kotteakos v. United States, 328 U.S. 750, 758 (1946). Though the body of law surrounding the federal harmless error rule is in a word, dense, there has been surprisingly little  development of “harmless error” jurisprudence at the CAVC, or in the Federal Circuit as it applies to CAVC opinions.   Setting aside the fact that the burden of proving an error harmless often falls to the party who benefits from the error, and that such burden of proof is often “flipped” in CAVC application of the “harmless error” rule (the veteran is required to prove that any BVA error is harmless), two major questions remain largely unanswered in the CAVC’s body of harmless error jurisprudence:   1) What rights are substantial, in the context of Title 38, such that harmless error analysis cannot apply to a BVA error?   2) Since the CAVC is prohibited from making initial findings of fact except in rare circumstances pursuant to 38 U.S.C. § 7261(c), how can it conduct certain harmless error analysis without making factual findings?   The Court, through its supplemental briefing order, seeks to resolve at least the second question.    There are many other questions that flow from these two.  I would offer, for consideration, the idea that the second question answers itself: if the CAVC must make a finding of fact to decide if an error is harmless or not, then there is a good possibility that the error involves a substantial right to which harmless error may not apply.    The Federal Circuit has resolved this question in a different way: that court found that where the facts underlying the error are in dispute, “we cannot conduct a harmless error analysis without exceeding the bounds of our jurisdiction, which precludes fact review”. Wood v. Peake, 520 F.3d 1345, 1351 (Fed. Cir. 2008). Where the facts underlying the error are not in dispute, the Federal Circuit has found that they are not conducting a factual review but instead “applying a dispositive legal standard to undisputed facts [as] essentially a matter of law”. Id   Facts of the BVA Decision. A September 1974 VA ratings decision found the veteran’s mental health condition was not service connected because medical evidence at the time established that the veteran’s mental health condition was secondary to his non-service-connected arthritis. The Veteran argued the VA failed to properly apply the presumption of soundness and/or aggravation [38 USC §1111] and the presumption of service connection for chronic conditions diagnosed in service [38 USC 105(a)] when it denied service connection for a mental health condition.  He argued this because there was evidence in the service treatment records at the time of the 1974 decision showing the veteran’s mental health condition may have first appeared in-service, which should have triggered an analysis from the VA whether the in-service mental health condition was, by operation of the presumption of soundness, related to the (then) currently diagnosed mental health condition. The BVA found Mr. Simmons did not establish CUE as to any failure to apply the presumption of soundness because he had only claimed direct service connection. Even if there was an error in the failure to apply the presumption of soundness, the BVA alleges the outcome would not have been manifestly different – a required element of a CUE claim – because the VA would still have found the veteran’s mental health condition was secondary to his non service connected arthritis.  Veteran’s Argument. The Veteran argues the BVA clearly erred when it held that there was not a manifestly different outcome. He argues that the presumption of soundness, once it attaches, requires only a showing that the in-service symptoms and condition are the same illness as the currently diagnosed illness. Instead, he argues, the BVA found that there could not be a manifestly different outcome because there was not evidence that the currently diagnosed mental health condition was causally related to military service. Secretary’s argument. The Secretary argued the Veteran did not meet his burden of establishing that the BVA clearly erred but even if he did, the veteran did not show the error was harmless, citing to Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010). Court’s Statement of the Issue. “Assuming, without deciding, that the Board erred regarding Section 105 but that any such error is nonprejudicial because the Board correctly determined that the record does not show a manifestly changed outcome, the Court requests supplemental briefing to aid in the resolution of issues related to the Court’s harmless error review. Therefore, the Court directs the parties to submit supplemental briefing on the following questions: 1) Section 7261(c) provides that “[i]n no event shall findings of fact made by the Secretary or the [Board] be subject to trial de novo by the Court.” What is the proper understanding of the prohibitory scope of this statutory provision, including, but not limited to, the reference to “trial de novo,” concerning “findings of fact made by the Secretary or the [Board]”? 2) What is the proper standard for the Court to employ in making factual determinations pursuant to a harmless error analysis? Should it find facts de novo in all cases, or is there some other more appropriate standard? 3) What is the proper test for making the ultimate determination as to whether an error harmed a VA claimant? Is the test whether the error would affect the judgment, affect the essential fairness of the adjudication, see Sanders, 556 U.S. at 407-08; Vogan, 24 Vet.App. at 163, or is there another more appropriate test? See Sanders, 556 U.S. at 406 (holding that the statute “requires the Veterans Court to apply the same kind of ‘harmless-error’ rule that courts ordinarily apply in civil cases”); but see id. at 412 (noting that the VA “adjudicatory process in not truly adversarial, . . . [which] might lead a reviewing court to consider harmful in a veteran’s case error that it might consider harmless in other circumstances”) (internal citation removed). 4) Although the Court normally “may examine the entire record before the Agency,” Vogan, 24 Vet.App. at 164, would the Court’s examination differ in determining whether an error was harmless when a VA claimant asserts CUE given that CUE is adjudicated “based on the record and the law that existed at the time of the prior . . . decision,” Russell v. Principi, 3 Vet.App. 310, 314 (1992)? 5) In undertaking a harmless error analysis, are there any limitations as to the Court’s ability to make factual and legal determinations and to apply the law to the facts found?”     Panel for Court of Appeals for Veterans Claims: Chief Judge Robert N. Davis (link to bio on Court webpage) Judge Margaret Bartley (link to bio on Court webpage) Judge Michael P. Allen (link to bio on Court webpage)   Appellant’s Counsel: Ken Carpenter, on the Briefs and at Argument [Carpenter Chartered]   VA Office of General Counsel Attorney: Joshua L. Wolinsky, Attorney on the Briefs and at Argument   Links to the Parties Briefs Appellant’s Opening Brief Appellee’s Response Brief Appellant’s Reply Brief Court’s Supplemental Briefing Order Appellant’s Response to  Supplemental Briefing Order Appellee’s Response to  Supplemental Briefing Order BVA Decision  Winston Salem, North Carolina Regional Office BVA Veterans Law Judge: J. Parker The post Episode 005: CAVC Oral Argument: Simmons v. Wilkie (16-3039)(CAVC Application of Harmless Error Rule) first appeared on Attig Steel, PLLC. The post Episode 005: CAVC Oral Argument: Simmons v. Wilkie (16-3039)(CAVC Application of Harmless Error Rule) appeared first on Attig Steel, PLLC.

    1h 31m

  4. 04/24/2018

    Episode 004: CAVC Oral Argument – Johnson v. Wilkie, #16-3808 (April 24, 2018) Successive Rating Criteria for Migraines)

    General Preview of the Case: This is a complex case involving the complex issue of “successive rating criteria”, with a lot of regulatory interpretation and factual application issues at play.  There is one, and possibly more, diagnostic codes for rating veterans disabilities which include what are called “successive rating criteria”.  Camacho v. Nicholson, 21 Vet.App. 360 (2007). This means that each level of rating includes, within it, the criteria for the lower ratings.  The rating for diabetes is the most well known of the VA diagnostic codes believed to have successive rating criteria. Camacho v. Nicholson, 21 Vet.App. 360 (2007).  The CAVC has held in Camacho that because the schedule for rating diabetes requires establishment of successive rating criteria, certain VA regulations do not apply. First, the Court held that 38 C.F.R. §4.7 does not apply where there are successive rating criteria in a diagnostic code. 38 CFR 4.7 says that where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating.  I disagree with the premise and holding of Camacho. I believe that it is entirely possible to have a set of rating criteria which are successive while still having a fact pattern in which the disability picture more nearly approximates the higher rating while not strictly meeting all of its criteria. If you have a BVA decision that refuses to apply either or all of 38 C.F.R. §§4.3, 4.7, or 4.21 because the rating criteria are believed to be successive, please contact my law office to review your BVA decision for possible appeal to the CAVC. In a later case, Pierce v. Principi, 18 Vet. App. 440 (2004), when considering whether DC 8100 for rating migraines contained successive rating criteria,  the Court suggested that certain other regulations besides the benefit of the doubt regulation might not apply.  Two of those regulations were 38 C.F.R. §4.3 (the benefit of the doubt standard) and 38 C.F.R. 4.21 (in which the Secretary expects atypical instances of a disease in which all of the criteria for a particular set of rating criteria may not manifest). In this case, the question arose whether  DC 8100 (for rating migraines) did include “successive rating criteria”.  The Court’s driving concern is that it wants a clear standard for when a particular diseases’ rating criteria could be said to be successive, and if those rating criteria were only “partially successive”, to include how the Court might analyze whether the three regulations noted above would apply. Would they only apply to the successive ratings, or all the rating levels, or none. The Court fears an overly complex analysis for evaluating whether the BVA properly applied rating criteria would always include the first question of whether the various impairment levels of the rating criteria were successive, partially overlapping, or wholly independent. Facts & BVA Decision. The veteran, Willie Johnson, is rated 30% for his service-connected migraine headaches. He sought a higher rating, after pointing to evidence which might arguably establish a 50% rating.  The BVA refused to consider 38  C.F.R. §4.7, and did not consider which rating more nearly approximates the veteran’s migraine disability (30% or 50%) because DC 8100 (diagnostic code for rating migraines) contained successive rating criteria, and, under 38 C.F.R. § 4.7 was not applicable. Curiously, the BVA did not cite to Camacho for the proposition that 38 C.F.R. §4.7 does not apply to diagnostic codes with successive rating criteria. Instead, the BVA Hearing Officer cited to Tatum v. Shinseki, 23 Vet. App. 152 (2009) which, arguably in dicta, rejected that expansive characterization of the Camacho holding. Preface to the Parties Arguments. Neither party raised the issue of whether 38 C.F.R. §4.7 (or 38 C.F.R. §4.3 or 38 C.F.R. §4.21) applied to diagnostic codes with successive rating criteria. The phrase “successive rating criteria” appears in neither brief. Neither parties primary briefs discuss or cite to Camacho. The Secretary alone makes the singular citation to 38 C.F.R. §4.7, arguing that the BVA decision is not clearly erroneous because “[t]here is a plausible basis in the record as a whole for the Board’s determination that Appellant’s headaches more nearly approximate the 30% rating throughout the entire appeal period.” I do not mention these facts to embarrass either party. Parties are free to frame the issues in their case in the way that is most beneficial to their client.  I mention this only because it is rare for the Veterans Court to seek out an un-briefed issues to adjudicate.  As a result, in the arguments, you will hear the Court and the parties struggle to understand how to define whether a particular diagnostic codes levels of impairment are or are not successive rating criteria. Though I do not want to prejudice your understanding of the issues in this argument with my point of view, I suggest that this might have been a scenario where the Court waited until the parties themselves raised the issue of what constitutes a successive rating criteria, so the issue might be adjudicated in the context of a clear fact pattern. Veterans Arguments on the Panel’s Issue: The veteran argues that there is a difference between ratings which overlap (different rating levels have some criteria in common) and there are others which are successive rating criteria (each level builds on the prior level).  When there are successive rating criteria, as in the case of DC 7913 for diabetes, no analysis of the “interplay” between 38 C.F.R. §§ 4.3, 4.7, and 4.21 is necessary. In regards to whether DC 8100 for rating migraines contains successive rating criteria, Mr. Johnson argues that the lower ratings of DC 8100 are successive, but the higher ratings are not.  He points out that the criteria for a 30 percent rating for migraines requires “characteristic prostrating attacks occurring on an average once a month over last several months”. He notes the criteria for a 50 percent rating for migraines requires “very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability.” He hypothesizes that it is  possible the criteria are not successive because the terms for the ratings themselves  are different. Secretary’s Arguments The Secretary does not dispute that successive rating criteria exist  where each criterion for the lower disability rating is included in the criterion for the higher disability rating.  The Secretary does, however, differ from Appellant in that he argues  38 C.F.R. §4.3 (the VA regulation governing application of the rule of the benefit of the doubt) is fact dependent and can apply whether or not the criteria are successive, overlapping or independent.  The Secretary, in his briefs, disagrees  with Appellant and states that DC 8100 for rating migraines includes successive rating criteria because “they build upon one another in both frequency and severity; one cannot fulfill a higher rating without fulfillment of a lower rating.” The Secretary seems to take a different approach in the oral arguments, but I will leave you to listen to that argument, and the Court’s strong negative reaction to it towards the end of the Secretary’s arguments. Court’s Statement of the Issue The case was assigned to a panel to provide binding precedent on the application of the concept of successive rating criteria to all DCs, and resolving uncertainty with regard to DC 8100 in particular. The Court will discuss the following 3 specific questions: 1) What are the determinants of whether a DC involves successive rating criteria, such that an analysis of the interplay among §§ 4.3, 4.7, and 4.21 is not required to assign a rating under any given DC? 2) How do those determinants apply in the specific instance of DC 8100? 3) If the panel were to agree that DC 8100 has successive rating criteria, would that conclusion create a conflict with Pierce requiring an en banc decision to resolve? Panel for Court of Appeals for Veterans Claims: Chief Judge Robert N. Davis (link to bio on Court webpage) Judge Mary J. Schoelen  (link to bio on Court webpage) Judge Michael P. Allen (link to bio on Court webpage)   Appellant’s Counsel: Raymond J. Kim, Attorney on the Supplemental Briefs and at Argument  [National Veterans Legal Services Project]   VA Office of General Counsel Attorney: Sarah E. Wolf, Attorney on the Briefs and at Argument Links to the Parties Briefs Appellant’s Opening Brief Appellee’s Response Brief Appellant’s Reply Brief Court’s Briefing Order Appellant’s Supplemental Brief Appellee’s Supplemental Brief Appellant’s Amended Supplemental Brief BVA Decision   VA Regional Office: Roanoke, Virginia BVA Hearing Officer: Paul Sorisio   The post Episode 004: CAVC Oral Argument – Johnson v. Wilkie, #16-3808 (April 24, 2018) Successive Rating Criteria for Migraines) first appeared on Attig Steel, PLLC. The post Episode 004: CAVC Oral Argument – Johnson v. Wilkie, #16-3808 (April 24, 2018) Successive Rating Criteria for Migraines) appeared first on Attig Steel, PLLC.

    1h 24m

  5. 04/24/2018

    Episode 003: CAVC Oral Argument: Spellers v. Wilkie, 16-4053 (April 19, 2018)

    Issue for Oral Argument: General Overview of the Law When a veteran’s disability does not meet the requirements for the next higher schedular rating, but the evidence indicates his or her disability is more severe than the current rating, a veteran may be entitled to an exam and an extraschedular rating under 38 C.F.R. § 3.321. Th BVA must first compare the veteran’s symptoms with the assigned schedular rating. Yancy v. McDonald, 27 Vet.App. 484 (2016). If the schedular rating criteria do not contemplate  the symptoms and functional effects the veteran experiences, the BVA must refer to the veteran for an extraschedular rating. The purpose of extraschedular rating is to fill a gap when the veteran’s disability picture does not fit precisely within the established schedular criteria: the extraschedular rating is meant to account for situations in which a veteran’s disability does not cause total unemployability but is still inadequately rated under the schedular criteria. See Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014)  Facts & BVA Decision. Mr. Spellers is rated 10% for bilateral moderate incomplete paralysis of the sciatic nerve under DC 8520 (39 C.F.R. 4.124(a)). Mr. Spellers relies on a cane for walking short distances and a walker for longer distances with frequent resting.  It rates the condition as follows: 10%   Mild incomplete paralysis 205   Moderate incomplete paralysis 40%  Moderately severe incomplete paralysis 60%  Severe incomplete paralysis with marked muscular atrophy 80%  Complete paralysis, where the foot dangles and drops, there is no active movement possible of the muscles below the knee, and/or flexion of the knee is weakened or (very rarely) lost. DC 8520 does not mention the use of assistive devices in its rating criteria. Therefore, Mr. Spellers believes he is entitled to an extraschedular rating based on the additional limitation that results from the use of a walker and cane. The BVA held the symptoms that necessitate use of an assistive device are fully contemplated by the rating criteria; because the use of such assistive device directly addresses a veteran’s functional limitation, the veteran is not entitled to an extraschedular rating for the use of an assistive device. Veteran’s argument. The Veteran argues that the BVA improperly interpreted 38 C.F.R. § 4.124a (DC 8520) and 38 C.F.R. §3.321(b) when it found that an extraschedular rating is not permissible because the symptoms that necessitate use of a walker and cane are contemplated in the rating criteria implies that the use of assistive devices are also contemplated. Secretary’s argument. The Secretary argues that the BVA correctly rejected an extraschedular rating when it applied 38 C.F.R. 4.124(a)(DC 8520) because the use of a cane or walker is not a symptom of Mr. Speller’s condition but instead a device used to ameliorate the effects of a symptom such as instability. 38 C.F.R. § 4.124(a), DC 8520.  He argues that the use of a cane or crutch are not separately-compensable symptoms any more than putting a cast on a broken arm would be separately compensable beyond the rating criteria in the schedule for rating the arm. Court’s Statement of the Issue How, if at all, should the use of assistive devices (e.g., a cane or walker) be considered as part of the Board’s analysis of whether referral for consideration for an extraschedular rating under § 3.321(b) is warranted?     Panel for Court of Appeals for Veterans Claims: Judge Margaret Bartley (link to bio on Court webpage) Judge Michael P. Allen (link to bio on Court webpage) Judge Amanda L. Meredith (link to bio on Court webpage)   Appellant’s Counsel: Tessa S. Stillings, Attorney on the Briefs [Chisholm, Chisholm and Kilpatrick] Dana N. Weiner, Attorney at Argument [Chisholm, Chisholm and Kilpatrick]   VA Office of General Counsel Attorney: Anthony D. Ortiz, Attorney on the Briefs and at Argument Links to the Parties Briefs Appellant’s Opening Brief Appellee’s Response Brief Appellant’s Reply Brief Appellant’s Notice of Supplemental Authority BVA Decision  The post Episode 003: CAVC Oral Argument: Spellers v. Wilkie, 16-4053 (April 19, 2018) first appeared on Attig Steel, PLLC. The post Episode 003: CAVC Oral Argument: Spellers v. Wilkie, 16-4053 (April 19, 2018) appeared first on Attig Steel, PLLC.

    47 min

  6. 02/15/2018

    Episode 002: PRECEDENTIAL CAVC CASE ALERT: Turner v. Shulkin (16-1171)(Receipt of New and Material Evidence)

    What is the Deep Issue in the Case? New and material evidence received between the issuance of a VA Ratings Decision and a Notice of Disagreement is considered as  filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. 3.156(b). The VA denied the veteran’s claim to reopen service connection for epilepsy.  During the one year time period between the denial of that claim and the time to file a notice of disagreement (NOD), the veteran told the VA that he was getting treatment at a VA Medical Center for PTSD. When later included in the file, those VA medical records included evidence that the veteran’s PTSD was related to his epilepsy, but the Veteran did not tell the VA that.  The VA did not re-adjudicate the claim based on that information.  4 years later, the veteran sought to reopen service connection for epilepsy. The VA granted reopening, denied service connection and, on appeal, the BVA denied reopening. When the veteran told the VA that he was getting medical treatment at the VA during the 1 year appeal period, did the VA receive new and material evidence?   What did the CAVC Decide?   Were the records generated by a VA medical facility? Did VBA (not a typo) adjudicators have “sufficient knowledge” that the records existed. In accordance with the Federal Circuit’s holding in Sullivan,  the VBA’s constructive receipt of these records is not tied to their relevance to the claim.  ** This is not an effective binding precedent until the CAVC issues its mandate. If the Government does not seek reconsideration of the CAVC panel decision, full court review, or appeal the decision to the Federal Circuit Court of Appeals, the mandate will likely issue in late April 2018. *** Takeaway Points for VSOs and Veterans Disability Lawyers: 1. This is primarily an effective date rule. While it would be nice if the VA would routinely check CAPRI or other VA medical record systems for new and material evidence before finding that the veteran or survivor did not file a notice of disagreement, the government has made clear that it does not have enough resources to check its own computer databases. As such, the primary function of this rule will be in 2 scenarios: Scenario 1: the VA or BVA declines to reopen a case and there is evidence that the VA had constructive receipt of VA medical records in the 1 year appeal period.  This case should be argued that relevance of the records themselves is not the focus, and the case should be reopened and adjudicated on the merits of the service connection claim.   Scenario 2: Service connection is granted, and in adjudicating “down stream” issue of the claims effective date, the VA’s constructive receipt of its own VA medical records renders the original claim open and pending, supporting an earlier effective date. If you are an accredited VA attorney representing Veterans and have a question whether this rule applies to your effective date argument, please email me at vetlaw@attigsteel.com or submit a request for support online here. 2. This case is part of a bigger battle in American jurisprudence. The reasoning  in this case is intriguing and raises an eyebrow about the direction of the Court on certain issues; to that end, it is worth following the judges on the panel in cases of regulatory interpretation.  There are 2 reasons that, with or without an appeal, the reasoning in this case is intriguing. First, the term “new and material” evidence in the context of a claim to reopen will no longer be an issue after the VA’s appeals reform goes into place. Reopened claims will be replaced with supplemental claims, and the standard for supplementing will be “new and relevant”. Although the legislation contains interpretive guidance directing courts interpret  “new and material” and “new and relevant” in the same way, this will likely not happen in the long run. In my opinion – at least as I understand the law at this time – Congress cannot direct the courts to change how they interpret statutes merely by codifying the legislative bargain. Second, there is a battle raging in American jurisprudence. That battle is over the degree of deference  to be afforded administrative regulations which interpret a statute. That battle is being waged in every federal circuit court of appeals across many areas of the law. For our purposes,  in the context of regulations under Chapter 38 of the Code of Federal Regulations, that battle is represented by the “tug-of-war” between “Auer deference” and “Gardner deference”. More on this tug-of-war later, but the former says an agency interpretation of its own regulation is controlling unless the interpretation is plainly erroneous or inconsistent with the regulation; the latter says when there is an ambiguity in a regulation, the approach that benefits veterans controls. Most times, these 2 particular doctrines of interpretation (using that term very, very loosely), operate in harmony. In critical ways, however, they clash:  the VA’s interpretation is  not necessarily the “pro-veteran” approach. Other times, as Judge Toth seems to intonate in oral arguments in the Ravin case, it is not clear whether the individual or collective benefit of veterans should control under Gardner. In the tug of war between Auer and Gardner, who wins? 3 judges of the Federal Circuit made plain, in a January 2018 dissent in the Kisor decision, that Auer must give way to Gardner. Ultimately, however this micro-battle over Auer in the context of 38 CFR is part of a macro-war involving the power of the administrative state, the blurring of the separation of power between the legislature and the executive, and the limitation of the judiciary’s check to balance the executive branch.  I don’t want to characterize this battle as a resurgence of the doctrine of non-delegation – it very well could be. It is probably the better course to say only that I think we are witnessing the jurisprudential maturing of how that doctrine operates in harmony, or conflicts with, the concepts of federalism and co-equal branches of government.  The panel of judges in this case – 2 law professors being among them – are assuredly  aware of the micro and macro aspects of the battle over Auer deference. Rather than avoid the battle, the panel appears to probe the perimeter of defenses at the Federal Circuit: They find the word “received” is ambiguous in 38 C.F.R. 3.56(b) They find that Auer deference does not apply when the Secretary’s position is not even reasoned.  The reasoning assumes Auer is the governing rule of deference, otherwise it would have resolved the ambiguity with Gardner’s “what’s-best-for-the-veteran” focus. If this case is appealed to the Federal Circuit – and I strongly suspect it will – how the Federal Circuit addresses the issues in it will tell the CAVC quite a bit about how to write decisions interpreting regulations which will survive a Federal Circuit reversal.  Of course, there is a strong possibility that I’m simply “seeing dead people” where nobody else does, which has its own implications, depending on which movie you are watching.  2. What happens when a narrowly focused General Counsel meets an engaged Judge.  At one point in the oral arguments of this case, I found myself momentarily feeling sorry for a government attorney at the VA Office of General Counsel. Before going further, I want to be very clear.  If there is an award inside the VA Office of General Counsel for “taking one for the team” then Ms. Gower should be a 2018 nominee.  Government attorneys are in an unenviable position. As a former trial attorney with the Department of Treasury’s Office of General Counsel, and in one prominent lawsuit over the employment practices of the EPA Office of General Counsel, I saw first hand how GC’s speak with several (often contradictory) voices in distinct fora. I’ve experience the  top-down control over litigation and appeal strategies, and I’ve seen government GC’s work hard to avoid a unified jurisprudential theory on the belief their approach will be mooted in 4 years when a new GC comes to town. Additionally, the VA OGC has a historic tendency to take a restrictively narrow view of the law in his or her legal defense of the VA Secretary. TheVA OGC Attorney in this case was Lindsay Gower , and she took some  took some serious blows from the Court for the GC. It appears from her briefs, argument, and the soft whispers of her superiors that the GC had a tight rein on her arguments in this case.  I’m just a guy sitting in a private law office in Arkansas, but here’s my 2 cents: this case was about regulatory interpretation, and the powers-that-be appear did not give their attorney the tools to do her job most effectively. That’s not to say I’m defending how she chose to take those blows, either: this is NOT about good or bad advocacy skills. The exchange below is a clash over jurisprudential ideologies: one of the hardest jobs you can ask a relatively new line attorney in the VA to do is fight the battle over Auer deference by proxy, with both hands tied.  The exchange, below, was triggered by a question from Judge Allen: he asked for the Secretary’s position on the Duty to Assist in a particular phase of a claim. As noted above, Ms. Gower likely had no authority to state that position, did not know the position, or was instructed to evade answers to the question.  Each is fine, I think; while not having a position on an issue of importance to your legal position is not as unusual as it should be, judges prefer directness, candor, and  honesty. Saying “I don’t know”, or “We don’t have one” are honest answers. It is down right problematic, in an appeal that involves the reasonableness of the VA’s interpreta

  7. 01/31/2018

    PRECEDENTIAL CAVC CASE ALERT: Marcelino v. Shulkin (16-2959)(Service Connection of Obesity)

    What is the Deep Issue in the Case? The  Court of Appeals for Veterans Claims shall have exclusive jurisdiction to review BVA decisions; however, the Court may not review the schedule of ratings for disabilities adopted under 38 USC 1155 – or any action of the Secretary in adopting or revising that schedule. 38 U.S.C. §7252(a)(b).   The Veteran in this case had evidence of weight gain in service. He claimed his obesity, which appears to have been diagnosed after service, was secondary to his service connected knee conditions. Citing to 38 U.S.C. §1110 and other cases which have considered the meaning of the words disease, disability and injury, the BVA  found obesity is not a disease that can be service-connected.    Does the Court of Appeals for Veterans Claims (CAVC) have jurisdiction to decide whether the Secretary must list obesity as a disability on the schedule of ratings? What did the CAVC Decide? At the Court, the Secretary relied heavily on its own Office of General Counsel Opinion, an opinion not only contrary to the current body of medical authority but also  not introduced as evidence before the BVA, that obesity is not compensable. (OGC Precedential opinions are binding on the BVA, but not the Court). Marcelino argued the BVA did not apply the definition of disability properly and wrongly excluded obesity as a service-connectable disease, disability or injury under 38 U.S.C. §1110. The Court held it could not entertain either of these arguments as it lacked jurisdiction: in 38 U.S.C. §7252(b), Congress deprived it of the ability to review the schedule of ratings and any action of the Secretary in adopting or revising that schedule of ratings. The decision is – technically – not yet law. The Court must first issue its judgment (which I would expect to happen around mid-February unless one of the parties seeks reconsideration).  Once the Court issues its judgment, the parties have 60 days to appeal to the U.S. Court of Appeals for the Federal Circuit. Failing that, the CAVC mandate will issue and Marcelino will become law. Takeaway Points for VSOs and Veterans Disability Lawyers: 1. Outcome aside, as a Veteran, Marcelino gave me confidence in the CAVC.  Marcelino is an important case for many veterans. Obesity is one of the major diseases that plagues modern veterans – it kills us, it keeps us from working, and many would not be obese but for their military service. There is an obesity epidemic among veterans – as much or more than the civilian population. At a minimum, veterans treated at the VHA – where there is substantial overlap with service connected disabilities – have a significantly higher likelihood of obesity. (Click here to read the study) Because of its importance, I am troubled by the outcome of Marcelino. Let me be clear: I am not troubled by the Court. Nor am I troubled how the Court rendered or reached its decision. I am actually encouraged by the “how” of the court’s decision, as noted below.  The Court decided the issue as it should – based on the arguments presented to it.   There’s an old riddle for appellate lawyers: which side of any argument do you ALWAYS take? The answer: the side where I get to define the issue before the court. The Court’s job is not to hunt through the law to find arguments in a given case.  If you ask any judge, anywhere, they all have an example of a case where they spot an issue that would have won the case for one party or the other, if only it had been argued different, or argued at all.  Resisting the temptation to seek out arguments and issues is what makes a court objective and impartial – and what ensures that the law moves forward fairly.  With the same degree of fervor I believe Congress gave the CAVC jurisdiction over the dispute in Marcelino, I believe the decision demonstrates a noteworthy degree of objectivity in the particular panel of judges who heard and decided the case. Marcelino was rife with opportunity for “judicial activism”: any one of the judges could have fallen back on her own philosophy or belief system to deliver an outcome in either direction.  Had that happened and the CAVC held obesity should be a compensable disease based solely on the arguments presented to it in Marcelino, I believe trust in the Court would have been seriously undercut. The Court would have decided the law, not the dispute before it. 2. Appellate advocates can learn a lot from the Marcelino case. Ultimately, the outcome of an appeal can be traced to how an issue is framed and argued to the Court. Marcelino proves that rule.  Here’s how the issue was presented to the Court: Appellant (from his opening brief): “Did the Board misinterpret the term obesity and the law as stated in 38 U.S.C. § 1110, render a decision contrary to VA policy, and misinterpret the law governing the Board’s role and expert evidence when it determined that obesity is not a disease?” Appellee, Secretary (from his response brief): “Should the Court should affirm the April 5, 2016, Board of Veterans’ Appeals (Board or BVA) decision that denied entitlement to service connection for obesity where the Board complied with the Agency’s longstanding policy that it does not consider obesity to be a disease for purposes of disability compensation, and Appellant fails to show any clear error therein?” The Court, in a Briefing Order, directed the parties to be prepared to discuss the following issue at oral argument: The Court’s concern: Whether the Court has jurisdiction to review whether VA should consider obesity a disability under the rating schedule, in addition to the other issues raised in the parties’ briefing. See, Wanner v. Principi, 370 F.3d 1124, 1131 (Fed. Cir. 2009). Jurisdiction is critical in appellate courts – it is the initial concern in any appeal.  Before the Court could even consider the parties’ arguments whether obesity is or is not a compensable disease, it had to consider whether it had jurisdiction to decide the matter in the first place. This was a problem for Marcelino for 3 reasons: First, the Secretary’s scant reference to Wanner is curious. The Secretary filed no motion to dismiss based on lack of CAVC jurisdiction, as he typically does. He concedes in his response brief that the CAVC does have “…jurisdiction under 38 U.S.C. § 7252(a), which grants the U.S. Court of Appeals for Veterans Claims (Court) exclusive jurisdiction to review Board decisions.” Secretary’s Response Brief, at page 2. It wasn’t until the 15th page of his response, half a page before he closed, that he argued Wanner “barred” Appellant from relief. This is a hefty blow to Appellant’s case, and it is disconcerting that it would appear 15 pages in, almost as a post-script. Third, after the Secretary’s closing reference to Wanner argues for a complete bar to relief, the Appellant did not respond to the attack in his reply. Fourth, if you listen to oral arguments, you can hear the Court’s frustration in the parties’ unwillingness to dive into the jurisdictional issue. At approximately 12:25 of the oral arguments, the Court expresses that frustration to Appellant’s counsel: “You’re almost saying we don’t have a jurisdictional problem and you’re not making an argument, but if you were going to make an argument as to jurisdiction and I think…umm….we want you to make an argument as to jurisdiction….”.   The Secretary’s attorney took some blows, too, on the jurisdictional issue. It is always easier to look at cases from the outside, and to the extent I am critical of the argument of either party, it is because I have the luxury of watching the fight from the sidelines. There is more to this case than briefs and arguments and as I say often on this blog, I can only talk about what is in the public record – there may be far loftier considerations at play in this appeal that I have no clue about. It is from our losses that the Veterans’ Bar brews future victories, so it is important that we distill every lesson we can from this case – particularly since this issue comes along so rarely.  Marcelino proves how important lawyers – and arguments that draw from the entire experience of the veterans’ bar – are to the development of a coherent and consistent body of law. We live to fight another day.  3. I believe the Court does have jurisdiction to decide whether the Secretary must service-connect and compensate veterans for obesity. This was, at its core, a question of statutory interpretation of the Court’s jurisdictional charge: 38 U.S.C. §7252. The Court heavily considered the express mention of 38 U.S.C. §1155 as a limit on its jurisdiction in 38 U.S.C. §7252(b). 38 U.S.C. §1155 is not a stand-alone statute, and cannot be properly interpreted without looking at the body of law that comprises Title 38 and without considering other statute in pari materia.  The reference to 38 U.S.C. §1155 in the CAVC’s jurisdictional charge appears to be a carve-out, a nod to the primacy of the Federal Circuit’s jurisdiction over certain regulatory matters under the Administrative Practices Act. Even the legislative committee reports demonstrate the legislative compromise at play in 38 USC §7252: nobody wanted every comma in every diagnostic code of the schedule of ratings to be the subject of litigation before the CAVC but, at the same time, the Secretary shouldn’t have “carte blanche” to publish unreviewable regulations. See, Wingard v. McDonald, 779 F.3d 1354, 1357-1359 (2015).  To interpret 7252(b) beyond this plain text meaning  renders other portions of Title 38 irrelevant, and raises interesting constitutional questions.  While the Court was correct to consider the importance of §1155, and the Wanner and Wingard and Byrd cases are important to that consideration, the parties

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